In order to understand the social condition, it will be necessary to

consider the nature of the paternal rule in its legal aspects. To

modern imagination the old Japanese laws may well seem intolerable;

but their administration was really less uncompromising than that of

our Western laws. Besides, although weighing heavily upon all

classes, from the highest to the lowest, the legal burden was

proportioned to the respective strength of the bearers; the

application of law being made less and less rigid as the social scale

descended. In theory at least, from the earliest times, the poor and

unfortunate had been considered as entitled to pity; and the duty of

showing them all possible mercy was insisted upon in the oldest

extant moral code of Japan,--the Laws of Shotoku Taishi. [345] But

the most striking example of such discrimination appears in the

Legacy of Iyeyasu, which represents the conception of justice in a

time when society had become much more developed, its institutions

more firmly fixed, and all its bonds tightened. This stern and wise

ruler, who declared that "the people are the foundation of the

Empire," commanded leniency in dealing with the humble. He ordained

that any lord, no matter what his rank, convicted of breaking laws

"to the injury of the people," should be punished by the confiscation

of his estates. Perhaps the humane spirit of the legislator is most

strongly shown in his enactments regarding crime, as, for example,

where he deals with the question of adultery--necessarily a crime of

the first magnitude in any society based on ancestor-worship. By the

50th article of the Legacy, the injured husband is confirmed in his

ancient right to kill,--but with this important provision, that

should he kill but one of the guilty parties, he must himself be held

as guilty as either of them. Should the offenders be brought up for

trial, Iyeyasu advises that, in the case of common people, particular

deliberation be given to the matter: he remarks upon the weakness of

human nature, and suggests that, among the young and simple-minded,

some momentary impulse of passion may lead to folly even when the

parties are not naturally depraved. But in the next article, [346]

No. 51, he orders that no mercy whatever be shown to men and women of

the upper classes when convicted of the same crime. "These," he

declares, "are expected to know better than to occasion disturbance

by violating existing regulations; and such persons, breaking the

laws by lewd trifling or illicit intercourse, shall at once be

punished without deliberation or consultation.* [*That is to say,

immediately put to death.] It is not the same in this case as in the

case of farmers, artizans, and traders." ... Throughout the entire

code, this tendency to tighten the bonds of law in the case of the

military classes, and to loosen them mercifully for the lower

classes, is equally visible. Iyeyasu strongly disapproved of

unnecessary punishments; and held that the frequency of punishments

was proof, not of the ill-conduct of subjects, but of the ill-conduct

of officials. The 91st article of his code puts the matter thus

plainly, even as regarded the Shogunate: "When punishments and

executions abound in the Empire, it is a proof that the military

ruler is without virtue and degenerate." He devised particular

enactments to protect the peasantry and the poor from the cruelty or

the rapacity of powerful lords. The great daimyo were strictly

forbidden, when making their obligatory journeys to Yedo, "to disturb

or harass the people at the post-houses," or suffer themselves "to be

puffed up with military pride." [347] The private, not less than the

public conduct of these great lords, was under Government

surveillance; and they were actually liable to punishment for

immorality! Concerning debauchery among them, the legislator remarked

that "even though this can hardly be pronounced insubordination," it

should be judged and punished according to the degree in which it

constitutes a bad example for the lower classes (Art. 88).* As to

veritable insubordination there was no pardon: the severity of the

law on this subject allowed of no exception or mitigation. The 53rd

section of the Legacy proves this to have been regarded as the

supreme crime: "The guilt of a vassal murdering his suzerain is in

principle the same as that of an arch-traitor to the Emperor. His

immediate companions, his relations,--all even to his most distant

connexions,--shall be cut off, hewn to atoms, root and fibre. The

guilt of a vassal only lifting his hand against his master, even

though he does not assassinate him, is the same." In strong contrast

to this grim ordinance is the spirit of all the regulations touching

the administration of law among the lower classes. Forgery,

incendiarism, and poisoning were indeed crimes justifying the penalty

of burning or crucifixion; but judges were instructed to act with as

much leniency as circumstances permitted in the case of ordinary

offences. "With regard to minute details affecting individuals of the

inferior classes," says the 73d article of the code, "learn the wide

benevolence of Koso of the Han [Chinese] dynasty." It was further

ordered that magistrates of the criminal and civil courts should be

chosen only from "a class of men who are upright and pure,

distinguished for charity and benevolence." All magistrates were kept

under close supervision, and their conduct regularly reported by

government spies.

[*Though even daimyo were liable to suffer for debauchery, Iyeyasu

did not believe in the expediency of attempting to suppress all vice

by law. There is a strangely modern ring in his remarks upon this

subject, in the 73d section of the Legacy: "Virtuous men have said,

both in poetry and in classic works, that houses of debauch, for

women of pleasure and for street-walkers, are the worm-eaten spots of

cities and towns. But these are necessary evils, and if they be

forcibly abolished, men of unrighteous principles will become like

ravelled thread, and there will be no end to daily punishments and

floggings." In many castle-towns, however, such houses were never

allowed--probably in view of the large military force, assembled in

such towns, which had to be maintained under iron discipline.]

[348] Another humane aspect of Tokugawa legislation is furnished by

its dictates in regard to the relations of the sexes. Although

concubinage was tolerated in the Samurai class, for reasons relating

to the continuance of the family-cult, Iyeyasu denounces the

indulgence of the privilege for merely selfish reasons: "Silly and

ignorant men neglect their true wives for the sake of a loved

mistress, and thus disturb the most important relation.... Men so far

sunk as this may always be known as Samurai without fidelity or

sincerity." Celibacy, condemned by public [349] opinion,--except in

the case of Buddhist priests,--was equally condemned by the code.

"One should not live alone after sixteen years of age," declares the

legislator; "all mankind recognize marriage as the first law of

nature." The childless man was obliged to adopt a son; and the 47th

article of the Legacy ordained that the family estate of a person

dying without male issue, and without having adopted a son, should be

"forfeited without any regard to his relatives or connexions." This

law, of course, was made in support of the ancestor-cult, the

continuance of which it was deemed the paramount duty of each man to

provide for; but the government regulations concerning adoption

enabled everybody to fulfil the legal requirement, without

difficulty.

Considering that this code which inculcated humanity, repressed moral

laxity, prohibited celibacy, and rigorously maintained the

family-cult, was drawn up in the time of the extirpation of the

Jesuit missions, the position assumed in regard to religious freedom

appears to us one of singular liberality. "High and low alike,"

proclaims the 31st article, "may follow their own inclinations with

respect to religious tenets which have obtained down to the present

time, except as regards the false and corrupt school [Roman

Catholicism]. Religious disputes have ever proved the bane and

misfortune of this Empire, and must be firmly, suppressed." ... But

the seeming liberality of this article must not be misinterpreted:

[350] the legislator who made so rigid an enactment in regard to the

religion of the family was not the man to proclaim that any Japanese

was free to abandon the faith of his race for an alien creed. One

must carefully read the entire Legacy in order to understand

Iyeyasu's real position,--which was simply this: that any man was

free to adopt any religion tolerated by the State, in addition to his

ancestor-cult. Iyeyasu was himself a member of the Jodo sect of

Buddhism, and a friend of Buddhism in general. But he was first of

all a Shintoist; and the third article of his code commands devotion

to the Kami as the first of duties:--"Keep your heart pure; and so

long as your body shall exist, be diligent in paying honour and

veneration to the Gods." That he placed the ancient cult above

Buddhism should be evident from the text of the 52d article of the

Legacy, in which he declares that no one should suffer himself to

neglect the national faith because of a belief in any other form of

religion. This text is of particular interest:

"My body, and the bodies of others, being born in the Empire of the

Gods, to accept unreservedly the teachings of other countries,--such

as Confucian, Buddhist, or Taoist doctrines,--and to apply one's

whole and undivided attention to them, would be, in short, to desert

one's own master, and transfer one's loyalty to another. Is not this

to forget the origin of one's being?"

[351] Of course the Shogun, professing to derive his authority from

the descendant of the elder gods, could not with consistency have

proclaimed the right of freedom to doubt those gods: his official

religious duty permitted of no compromise. But the interest attaching

to his opinions, as expressed in the Legacy, rests upon the fact that

the Legacy was not a public, but a strictly private document,

intended for the perusal and guidance of his successors only.

Altogether his religious position was much like that of the liberal

Japanese statesman of to-day,--respect for whatever is good in

Buddhism, qualified by the patriotic conviction that the first

religious duty is to the cult of the ancestors, the ancient creed of

the race.... Iyeyasu had preferences regarding Buddhism; but even in

this he showed no narrowness. Though he wrote in his Legacy, "Let my

posterity ever be of the honoured sect of Jodo," he greatly

reverenced the high-priest of the Tendai temple, Yeizan, who had been

one of his instructors, and obtained for him the highest court-office

possible for a Buddhist priest to obtain, as well as the headship of

the Tendai sect. Moreover the Shogun visited Yeizan to make there

official prayer for the prosperity of the country.

There is every reason to believe that within the territories of the

Shogunate proper, comprising the greater part of the Empire, the

administration of [352] ordinary criminal law was humane, and that

the infliction of punishment was made, in the case of the common

people, to depend largely upon circumstances. Needless severity was a

crime before the higher military law, which, in such cases, made no

distinctions of rank. Although the ring-leaders of a peasant-revolt,

for example, would be sentenced to death, the lord through whose

oppression the uprising was provoked, would be deprived of a part or

the whole of his estates, or degraded in rank, or perhaps even

sentenced to perform harakiri. Professor Wigmore, whose studies of

Japanese law first shed light upon the subject, has given us an

excellent review of the spirit of the ancient legal methods. He

points out that the administration of law was never made impersonal

in the modern sense; that unbending law did not, for the people at

least, exist in relation to minor offences. The Anglo-Saxon idea of

inflexible law is the idea of a justice impartial and pitiless as

fire: whoever breaks the law must suffer the consequence, just as

surely as the person who puts his hand into fire must experience

pain. But in the administration of the old Japanese law, everything

was taken into consideration: the condition of the offender, his

intelligence, his degree of education, his previous conduct, his

motives, suffering endured, provocation received, and so forth; and

final judgment was decided by moral common sense rather than by legal

enactment [353] or precedent. Friends and relatives were allowed to

make plea for the offender, and to help him in whatever honest way

they could. If a man were falsely accused, and proved innocent upon

trial, he would not only be consoled by kind words, but, would

probably receive substantial compensation; and it appears that judges

were accustomed, at the end of important trials, to reward good

conduct as well as to punish crime.* ... On the other hand,

litigation was officially discouraged. Everything possible was done

to prevent any cases from being taken into court, which could be

settled or compromised by communal arbitration; and the people were

taught to consider the court only as the last possible resort.

[*The following extracts from a sentence said to have been passed by

the famous judge, Ooka Tadasuke, at the close of a celebrated

criminal trial, are illustrative: "Musashiya Chobei and Goto

Hanshiro, these actions of yours are worthy of the highest praise: as

a remuneration I award ten silver ryo to each of you.... Tami, you,

for maintaining your brother, are to be commended: for this you are

to receive the amount of five kwammon. Ko, daughter of Chohachi, you

are obedient to your parents: in consideration of this, the sum of

five silver ryo is awarded to you."--(See Dening's Japan in Days of

Yore.) The good old custom of rewarding notable cases of filial

piety, courage, generosity, etc., though not now practised in the

courts, is still maintained by the local governments. The rewards are

small; but the public honour which they confer upon the recipient is

very great.]

The general character of the Tokugawa rule can be to some degree

inferred from the foregoing facts. It was in no sense a reign of

terror that compelled peace and encouraged industry for two hundred

and [354] fifty years. Though the national civilization was

restrained, pruned, clipped in a thousand ways, it was at the same

time cultivated, refined, and strengthened. The long peace

established throughout the Empire what had never before existed,--a

universal feeling of security. The individual was bound more than

ever by law and custom; but he was also protected: he could move

without anxiety to the length of his chains. Though coerced by his

fellows, they helped him to bear the coercion cheerfully: everybody

aided everybody else to fulfil the obligations and to support the

burdens of communal life. Conditions tended, therefore, toward the

general happiness as well as toward the general prosperity. There was

not, in those years, any struggle for existence,--not at least in our

modern meaning of the phrase. The requirements of life were easily

satisfied; every man had a master to provide for him or to protect

him; competition was repressed or discouraged; there was no need for

supreme effort of any sort,--no need for the straining of any

faculty. Moreover, there was little or nothing to strive after: for

the vast majority of the people, there were no prizes to win. Ranks

and incomes were fixed; occupations were hereditary; and the desire

to accumulate wealth must have been checked or numbed by those

regulations which limited the rich man's right to use his money as he

might please. Even a great lord--even the Shogun himself [355]

--could not do what he pleased. As for any common person,--farmer,

craftsman, or shopkeeper,--he could not build a house as he liked, or

furnish it as he liked, or procure for himself such articles of

luxury as his taste might incline him to buy. The richest heimin, who

attempted to indulge himself in any of these ways, would at once have

been forcibly reminded that he must not attempt to imitate the

habits, or to assume the privileges, of his betters. He could not

even order certain kinds of things to be made for him. The artizans

or artists who created objects of luxury, to gratify aesthetic taste,

were little disposed to accept commissions from people of low rank:

they worked for princes, or great lords, and could scarcely afford to

take the risk of displeasing their patrons. Every man's pleasures

were more or less regulated by his place in society, and to pass from

a lower into a higher rank was no easy matter. Extraordinary men were

sometimes able to do this, by attracting the favour of the great. But

many perils attended upon such distinction; and the wisest policy for

the heimin was to remain satisfied with his position, and try to find

as much happiness in life as the law allowed.

Personal ambition being thus restrained, and the cost of existence

reduced to a minimum much below our Western ideas of the necessary,

there were really established conditions highly favourable to certain

forms of culture, in despite of sumptuary [356] regulations. The

national mind was obliged to seek solace for the monotony of

existence, either in amusement or study. Tokugawa policy had left

imagination partly free in the directions of literature and art--the

cheaper art; and within those two directions repressed personality

found means to utter itself, and fancy became creative. There was a

certain amount of danger attendant upon even such intellectual

indulgences; and much was dared. Aesthetic taste, however, mostly

followed the line of least resistance. Observation concentrated

itself upon the interest of everyday life,--upon incidents which

might be watched from a window, or studied in a garden,--upon

familiar aspects of nature in various seasons,--upon trees, flowers,

birds, fishes, or reptiles,--upon insects and the ways of them,

--upon all kinds of small details, delicate trifles, amusing

curiosities. Then it was that the race-genius produced most of that

queer bric-a-brac which still forms the delight of Western

collectors. The painter, the ivory-carver, the decorator, were left

almost untroubled in their production of fairy-pictures, exquisite

grotesqueries, miracles of liliputian art in metal and enamel and

lacquer-of-gold. In all such small matters they could feel free; and

the results of that freedom are now treasured in the museums of

Europe and America. It is true that most of the arts (nearly all of

Chinese origin) were considerably developed before the Tokugawa era;

but it was then that they [357] began to assume those inexpensive

forms which placed aesthetic gratification within reach of the common

people. Sumptuary legislation or rule might yet apply to the use and

possession of costly production, but not to the enjoyment of form;

and the beautiful, whether shaped in paper or in ivory, in clay or

gold, is always a power for culture. It has been said that in a Greek

city of the fourth century before Christ, every household utensil,

even the most trifling object, was in respect of design an object of

art; and the same fact is true, though in another and a stranger way,

of all things in a Japanese home: even such articles of common use as

a bronze candlestick, a brass lamp, an iron kettle, a paper lantern,

a bamboo curtain, a wooden pillow, a wooden tray, will reveal to

educated eyes a sense of beauty and fitness entirely unknown to

Western cheap production. And it was especially during the Tokugawa

period that this sense of beauty began to inform everything in common

life. Then also was developed the art of illustration; then came into

existence those wonderful colour-prints (the most beautiful made in

any age or country) which are now so eagerly collected by wealthy

dilettanti. Literature also ceased, like art, to be the enjoyment of

the upper classes only: it developed a multitude of popular forms.

This was the age of popular fiction, of cheap books, of popular

drama, of storytelling for young and old.... We may certainly [358]

call the Tokugawa period the happiest in the long life of the nation.

The mere increase of population and of wealth would prove the fact,

irrespective of the general interest awakened in matters literary and

aesthetic. It was an age of popular enjoyment, also of general

culture and social refinement.

Customs spread downward from the top of society. During the Tokugawa

period, various diversions or accomplishments, formerly fashionable

in upper circles only, became common property. Three of these were of

a sort indicating a high degree of refinement: poetical contests,

tea-ceremonies, and the complex art of flower-arrangement. All were

introduced into Japanese society long before the Tokugawa

regime;--the fashion of poetical competitions must be as old as

Japanese authentic history. But it was under the Tokugawa Shogunate

that such amusements and accomplishments became national. Then the

tea-ceremonies were made a feature of female education throughout the

country. Their elaborate character could be explained only by the

help of many pictures; and it requires years of training and practice

to graduate in the art of them. Yet the whole of this art, as to

detail, signifies no more than the making and serving of a cup of

tea. However, it is a real art--a most exquisite art. The actual

making of the infusion is a matter of no consequence in itself: the

supremely important matter is that the act be performed in the most

perfect, [359] most polite, most graceful, most charming manner

possible. Everything done--from the kindling of the charcoal fire to

the presentation of the tea--must be done according to rules of

supreme etiquette: rules requiring natural grace as well as great

patience to fully master. Therefore a training in the tea-ceremonies

is still held to be a training in politeness, in self-control, in

delicacy,--a discipline in deportment.... Quite as elaborate is the

art of arranging flowers. There are many different schools; but the

object of each system is simply to display sprays of leaves and

flowers in the most beautiful manner possible, and according to the

irregular graces of Nature herself. This art also requires years to

learn; and the teaching of it has a moral as well as an aesthetic

value.

It was in this period also that etiquette was cultivated to its

uttermost,--that politeness became diffused throughout all ranks, not

merely as a fashion, but as an art. In all civilized societies of the

militant type politeness becomes a national characteristic at an

early period; and it must have been a common obligation among the

Japanese, as their archaic tongue bears witness, before the

historical epoch. Public enactments on the subject were made as early

as the seventh century by the founder of Japanese Buddhism, the

prince-regent, Shotoku Taishi. "Ministers and functionaries," he

proclaimed, [360] "should make decorous behaviour* their leading

principle; for their leading principle of the government of the

people consists in decorous behaviour. If the superiors do not behave

with decorum, the inferiors are disorderly: if inferiors are wanting

in proper behaviour, there must necessarily be offences. Therefore it

is that when lord and vassal behave with propriety, the distinctions

of rank are not confused when the people behave with propriety, the

government of the Commonwealth proceeds of itself." Something of the

same old Chinese teaching we find reechoed, a thousand years later,

in the Legacy of Iyeyasu: "The art of governing a country consists in

the manifestation of due deference on the part of a suzerain to his

vassals. Know that if you turn your back upon this, you will be

assassinated; and the Empire will be lost." We have already seen that

etiquette was rigidly enforced upon all classes by the military rule:

for at least ten centuries before Iyeyasu, the nation had been

disciplined in politeness, under the edge of the sword. But under the

Tokugawa Shogunate politeness became particularly a popular

characteristic,--a rule of conduct maintained by even the lowest

classes in their daily relations. Among the higher classes it became

the art of beauty in life. All the taste, the grace, the [361] nicety

which then informed artistic production in precious material, equally

informed every detail of speech and action. Courtesy was a moral and

aesthetic study, carried to such incomparable perfection that every

trace of the artificial disappeared. Grace and charm seemed to have

become habit,--inherent qualities of the human fibre,--and

doubtless, in the case of one sex at least, did so become.

[*Or, "ceremony": the Chinese term used signifying everything

relating to gentlemanly and upright conduct. The translation is Mr.

Aston's (see Vol. II, p, 130, of his translation of the Nihongi).]

For it has well been said that the most wonderful aesthetic products

of Japan are not its ivories, nor its bronzes, nor its porcelains,

nor its swords, nor any of its marvels in metal or lacquer--but its

women. Accepting as partly true the statement that woman everywhere

is what man has made her, we might say that this statement is more

true of the Japanese woman than of any other. Of course it required

thousands and thousands of years to make her; but the period of which

I am speaking beheld the work completed and perfected. Before this

ethical creation, criticism should hold its breath; for there is here

no single fault save the fault of a moral charm unsuited to any world

of selfishness and struggle. It is the moral artist that now commands

our praise,--the realizer of an ideal beyond Occidental reach. How

frequently has it been asserted that, as a moral being, the Japanese

woman does not seem to belong to the same race as the Japanese man!

Considering that heredity is limited by sex, there is reason in the

assertion: the Japanese woman is an ethically different [362] being

from the Japanese man. Perhaps no such type of woman will appear

again in this world for a hundred thousand years: the conditions of

industrial civilization will not admit of her existence. The type

could not have been created in any society shaped on modern lines,

nor in any society where the competitive struggle takes those unmoral

forms with which we have become too familiar. Only a society under

extraordinary regulation and regimentation,--a society in which all

self-assertion was repressed, and self-sacrifice made a universal

obligation,--a society in which personality was clipped like a hedge,

permitted to bud and bloom from within, never from without,--in

short, only a society founded upon ancestor-worship, could have

produced it. It has no more in common with the humanity of this

twentieth century of ours--perhaps very much less--than has the life

depicted upon old Greek vases. Its charm is the charm of a vanished

world--a charm strange, alluring, indescribable as the perfume of

some flower of which the species became extinct in our Occident

before the modern languages were born. Transplanted successfully it

cannot be: under a foreign sun its forms revert to something

altogether different, its colours fade, its perfume passes away. The

Japanese woman can be known only in her own country,--the Japanese

woman as prepared and perfected by the old-time education for that

strange society in which the charm [363] of her moral being,--her

delicacy, her supreme unselfishness, her child-like piety and trust,

her exquisite tactful perception of all ways and means to make

happiness about her,--can be comprehended and valued.

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